9911796707
TMI Blog2021 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... AO') for the assessment year 2012-13 vide order dated 21/09/2016 under section 143(3) read with section 144C (13) of the Income Tax Act, 1961 (hereinafter referred to as 'Act'). 2. The only issue in this appeal of assessee is against the order of DRP and Assessing Officer in denying the carry forward of short-term capital loss. For this, assessee has raised the following two grounds: - "Aggrieved by the final order passed by the Deputy Commissioner of Income-tax (International Taxation) - 2(3)(2) Mumbai ('AO') dated 21 September 2016, under section 143(3) read with section 144C(13) of the Act, in pursuance of the directions issued by Dispute Resolution Panel I ('DAP'), Mumbai, Goldman Sachs India Investments (Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore and registered with the Securities and Exchange Board of India (SEBI) as a sub-account of Goldman Sachs & Co (Registration No. IN-US-FA-0220-94). Goldman Sachs & Co. is registered with the SEBI as a FII. During the financial year ended 31.03.2012 relevant to this AY 2012-13, the assessee company has incurred short term capital loss amounting to Rs. 20,59,69,056/-. The Assessing Officer during the course of assessment proceedings required the assessee to explain as to why the short term capital loss is incurred during the Assessment Year 2012-13 should be allowed to be carry forward to subsequent years. The assessee before Assessing Officer submitted that it is a tax resident to Singapore and hold a valid tax resident certificate. India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not disputed by the Revenue), it follows that such losses would be permitted to be carried forward and be available for set off against taxable income of subsequent years. While the set- off of such losses in any subsequent year under assessment may be examined, where the same have not been offset in a subsequent year under assessment, it is not open to the Assessing Officer to deny the carry forward of losses so determined and quantified in a prior year. In light of the above, we noted that the AO has erred in denying the carried forward of short-term capital losses claimed by the Assessee in the return of income filed for AY 2012-13. 5. The learned Counsel for the stated that the assessee's issue is covered in assessee's sister concern c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is very clear that while determining taxability of the income of an assessee, if provisions of the Act are more beneficial as compared to the tax treaty then the beneficial provisions of the Act will apply in determining the taxability of such income. Thus, having regard to the provisions of section 90(2) of the Act and given that the provisions of section 74 of the Act permit the Assessee to carry forward capital losses to subsequent assessment years, the provisions of the Act are more beneficial than the provisions of the IS treaty. For the year under consideration, the Assessee has filed its return of income in accordance with the provisions of the Act. Based on judicial jurisprudence, the provisions of the IS treaty cannot be thrust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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